Frankie Walker, Sr. v. Guy Groot, et al
Filed opinion of the court by Judge Hamilton. AFFIRMED. Richard A. Posner, Circuit Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6861270-1]  [14-2478]
United States Court of Appeals
For the Seventh Circuit
FRANKIE N. WALKER, SR.,
GUY GROOT and STEVEN SCHOSTAK,
Appeal from the United States District Court for the
Central District of Illinois.
11-3033-SEM-TSH — Sue E. Myerscough, Judge.
ARGUED MARCH 30, 2017 — DECIDED AUGUST 14, 2017
Before POSNER, MANION, and HAMILTON.
HAMILTON, Circuit Judge. The plaintiff in this case wants a
new trial based on a jury instruction he agreed to and admission of two exhibits to which he did not object on the grounds
he argues on appeal. The plaintiff waived at trial the arguments he raises on appeal, so we affirm the judgment of the
I. Factual and Procedural History
Plaintiff Walker has lived in the Rushville Treatment & Detention Center since 2007, when he finished serving a sentence
in an Illinois prison. The State of Illinois classifies him as a
sexually violent person, and he was officially committed to
the Rushville facility in 2013. Around January 2009, while
Walker was detained at Rushville but before he was officially
committed, he wrote a letter to the executive director of the
conditional release program to learn more about the program
and to aid his counsel in challenging his inpatient detention.
Walker said in the letter that he had obtained a recommendation for conditional release. To be eligible for conditional release a detainee must be officially committed by an Illinois
court. 725 Ill. Comp. Stat. 207/50, 207/60 (2017). When he sent
the letter, Walker had not been committed. Walker had obtained a recommendation for the conditional release program
from a forensic psychologist appointed by the court to serve
as his expert witness. Walker apparently understood this recommendation as indicating his eligibility for the program.
The executive director received the letter but followed
standard procedure and returned the letter to the Rushville
facility. Walker testified at his civil trial in this case that Dr.
Groot, a member of his treatment team, “asked me about what
I wrote. And I told him … And his conclusion was the letter
was misleading because the letter did not say that I had received a recommendation from a state evaluator. My response
was a recommendation is a recommendation is a recommendation. And of course he said that it was misleading.”
In response to his letter, his treatment team assigned him
a “decision making model,” which is an exercise or treatment
tool in which the detainee examines his thought processes associated with a particular decision. Walker’s treatment team
testified that in the time before Walker sent the letter, he was
having difficulty with issues of mistrust of authority and his
treatment team, as well as with problem-solving and impulsivity. The letter, according to his treatment team, exemplified
these issues by seeking information from outside his treatment team. The decision-making model exercise was assigned
as part of his treatment to address those behavior issues.
Walker saw things differently. He believed that the assignment amounted to retaliation for his exercise of his First
Amendment right of free speech. He brought suit under 42
U.S.C. § 1983 in federal court alleging First Amendment violations by two members of his treatment team, Doctors Groot
and Schostak, and the case proceeded to trial.1 At trial, Walker
represented himself, but he received help from standby counsel recruited by the court. Walker took an active role in managing his case at trial. He testified, questioned witnesses, introduced exhibits into evidence, and objected to defense
We confess to some doubt about how Walker’s letter was speech
protected by the First Amendment or what cognizable and non-speculative harm he might have suffered, cf. Vasquez v. Raemisch, 480 F. Supp. 2d
1120, 1138 (W.D. Wis. 2007) (observing that although “prisoners have a
First Amendment right to send and receive mail,” the right is limited), citing Thornburgh v. Abbott, 490 U.S. 401, 413 (1989), and Procunier v. Martinez,
416 U.S. 396, 413–14 (1974), or how part of the treatment regimen could
violate the First Amendment, Koster v. Jelinek, No. 10-3003, 2011 WL
3349831, at *2 (C.D. Ill. Aug. 3, 2011) (“There is no doubt” that rehabilitation of a civil detainee at Rushville Treatment and Detention Center is a
legitimate government interest, and substantial deference is afforded to
treating professionals when determining whether a restriction is reasonably related to that interest), but those issues have not been presented on
counsel’s questions at several points. In the end, the jury
found for the defendants on all counts. Walker has appealed,
assisted by new counsel.
On appeal, Walker raises two issues. First, he argues that
the district court’s jury instructions on the First Amendment
retaliation claim were erroneous. Second, he argues that the
court erred in admitting privileged and prejudicial treatment
records into evidence. We find that Walker has waived the issues he raises on appeal.
A “party may not raise an issue for the first time on appeal.” Williams v. Dieball, 724 F.3d 957, 961 (7th Cir. 2013),
quoting Fednav International Ltd. v. Continental Ins. Co., 624
F.3d 834, 841 (7th Cir. 2010). Such failure to object ordinarily
constitutes waiver, id., and waiver normally precludes appellate review. Higbee v. Sentry Ins. Co., 440 F.3d 408, 409 (7th Cir.
2006). Yet the rules of evidence and civil procedure permit
“plain-error” review in some circumstances, even when the
party has failed to raise the issue in the district court. Fed. R.
Civ. P. 51(d); Fed. R. Evid. 103(e). Still, plain-error review has
only “limited application in civil litigation,” Higbee, 440 F.3d
at 409 (quotation omitted), and is “an extraordinary measure.” Backwater, Inc. v. Penn-American Ins. Co., 448 F.3d 962, 965
(7th Cir. 2006) (citation omitted). We consider the status of
Walker’s two arguments on appeal: (A) the jury instructions
and (B) admission of two treatment records.
A. Jury Instructions
Walker argues that the trial court’s instructions on the First
Amendment retaliation claim misstated the law on causation
when there is evidence that the defendants acted for more
than one reason. See generally, e.g., Spiegla v. Hull, 371 F.3d
928, 941–42 (7th Cir. 2004). To establish a First Amendment
retaliation claim, the plaintiff must establish that he engaged
in protected First Amendment activity, suffered a deprivation
that would likely deter future First Amendment activity, and
the First Amendment activity was a motivating factor in the
defendant’s decision to take the retaliatory action. Gomez v.
Randle, 680 F.3d 859, 866 (7th Cir. 2012); see also Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
Walker contends the court’s instruction to the jury stated
the law incorrectly and relieved the defendants from their
burden of showing they would have taken the same action
even absent constitutionally protected activity. See Greene v.
Doruff, 660 F.3d 975, 980 (7th Cir. 2011) (“[T]he burden of proof
relating to causation is divided between the parties in First
Amendment tort cases.”), citing Spiegla, 371 F.3d 928. Defendants may rebut the plaintiff’s showing that the activity was a
motivating factor in triggering the restriction, “but only by
showing that his conduct was not a necessary condition of the
harm—the harm would have occurred anyway.” Id. Walker
now argues that the error was plain and prejudicial. However,
Walker did not take either opportunity presented at trial to
object to the instruction.
Federal Rule of Civil Procedure 51 governs objections to
jury instructions. Rule 51(b) requires the judge to inform the
parties of its proposed instructions before instructing the jury
and final jury arguments, and to give the parties an opportunity to object on the record outside the hearing of the jury.
Rule 51(c) requires that a party object to a jury instruction in
a timely manner, on the record, “stating distinctly the matter
objected to and the grounds for the objection.” Accord, Consumer Products Research & Design, Inc. v. Jensen, 572 F.3d 436,
439 (7th Cir. 2009). “[M]ere tendering of proposed instructions
different from the instructions given” is not sufficient to preserve an objection to the instructions that are given. Griffin v.
Foley, 542 F.3d 209, 221 (7th Cir. 2008), citing Gordon v. Degelmann, 29 F.3d 295, 298 (7th Cir. 1994).
If a party failed to object properly to an instruction, an appellate court “may consider a plain error in the instructions
that has not been preserved as required by Rule 51(d)(1) if the
error affects substantial rights.” Fed. R. Civ. P. 51(d)(2). Especially in civil cases, plain-error review of jury instructions is
“quite limited” and “discretionary,” Higbee, 440 F.3d at 409,
and reserved for “exceptional circumstances.” Fed. R. Civ. P.
51, 2003 note, quoting United States v. Atkinson, 297 U.S. 157,
160 (1936) (finding no plain error where government failed to
object to jury instructions in civil case, while noting that in
“exceptional circumstances, especially in criminal cases,” appellate courts may act in public interest to correct plain errors). Application of Rule 51(d)(2) requires that “(1) there
must be an error; (2) the error must be plain; (3) the error must
affect substantial rights; and (4) the error must seriously affect
the fairness, integrity, or public reputation of judicial proceedings.” Fed. R. Civ. P. 51, 2003 note, citing Johnson v. United
States, 520 U.S. 461, 466–67, 469–70 (1997); see also AmmonsLewis v. Metropolitan Water Reclamation Dist. of Greater Chicago,
488 F.3d 739, 751 (7th Cir. 2007) (finding no plain error in jury
Plain-error review for jury instructions in civil cases is a relatively
recent development. Until 2003, the Federal Rules of Civil Procedure
expressly prohibited plain-error review for jury instructions in civil cases.
Walker failed to object to the instructions, and he cannot
clear the high bar for showing a plain error. At trial, neither
Walker nor his standby counsel objected to the instruction he
challenges on appeal, despite two opportunities to do so.
First, at the jury instruction conference, the judge went
through each instruction on the record. (Conducting such
conferences on the record, however informal they might
seem, is clearly the better course for purposes of appellate review.) The judge explained to Walker that she was “going to
say Court’s 1, and you’re going to either object or say no objection. All right?” The court also asked Walker’s standby
counsel if it would be more efficient “if you would handle this
part?” There was no direct response, but standby counsel
helped resolve an issue with the first instruction.
Then, after the first instruction, Walker spoke for himself.
Eventually, in reference to the now disputed instruction, the
court prompted Walker, “14?” Walker responded, “I have no
objection, Your Honor.” The court then noted that it had a revised copy of 14 that reflected “the change in the law about
motivating factor.” Defense counsel stated “That’s fine,” and
Walker restated “No objections.” The court read the full instruction of 14A, and again, Mr. Walker said, “I still have no
objection, Your Honor.” The defense did object, arguing that
the burden-shifting language of instruction 14 should also be
Higbee, 440 F.3d at 409. The Advisory Committee notes to Rule 51 instruct
courts to use the principles of plain-error review in the criminal context,
but recognize that “the context of civil litigation often differs from the
context of criminal prosecution” and that “actual application of the plainerror standard takes account of the differences.” Fed. R. Civ. P. 51, 2003
note. The clear implication is that the standard is more difficult to satisfy
in civil cases, at least where liberty is not at stake and where the public
interest at stake may be minimal.
in 14A. The court invited the defendants to submit a revised
instruction the next morning. The next day, before instructions were read to the jury, the court asked about the revised
instruction to include the contested portion, “Is there any objection to Defendant’s 14A?” Again, Walker replied, “No, I
have no objections, Your Honor.”
Walker argues for the first time on appeal that this instruction was given in error. Yet he failed to object during both opportunities to do so when the district judge could have acted
to correct any error. The jury instruction conference was not
merely a rote call-and-response routine. The court discussed
the instruction with counsel and Walker and even read it
aloud. Still Walker chose not to object. He affirmatively stated
three times that he had no objection to the jury instruction
(though once would have been enough to waive the issue argued on appeal).
Walker argues that we should give him special latitude as
a pro se litigant in a civil case. This is not a good case for testing
such latitude. Walker was offered counsel but chose to proceed pro se, leaving counsel in a standby role. In doing so, he
accepted any risks associated with that decision, which are
surely near their height when dealing with the legal issues
presented by jury instructions. With standby counsel present,
Walker affirmatively stated he had no objection. Thus, he has
waived that argument on appeal and has further failed to establish how the alleged error impairs his substantial rights or
how the alleged error seriously affects “the fairness, integrity,
or public reputation of judicial proceedings.” Fed. R. Civ. P.
51, 2003 note. Walker intentionally waived any objection to
the jury instructions, and there was no plain error.
B. Admission of Evidence: Exhibits 14 and 22A
We turn to Walker’s second issue on appeal, the admission
of two exhibits into evidence. A district court’s decision to admit evidence is generally reviewed for abuse of discretion.
Griffin v. Foley, 542 F.3d 209, 217–18 (7th Cir. 2008), citing Estate
of Moreland v. Dieter, 395 F.3d 747, 753 (7th Cir. 2005). However, when “a party fails to timely and properly object at trial
to the admission of evidence, the party is deemed to have
waived the issue on appeal.” See, e.g., Jones v. Lincoln Electric
Co., 188 F.3d 709, 727 (7th Cir. 1999) (citations omitted). Federal Rule of Evidence 103(e) permits (but does not require)
plain-error review when a party fails to object to the admission of evidence at trial. See, e.g., Jimenez v. City of Chicago, 732
F.3d 710, 720 (7th Cir. 2013). However, “a showing of plain error requires extraordinary circumstances” that affect substantial rights and result in a miscarriage of justice. Stringel v.
Methodist Hosp. of Indiana, Inc., 89 F.3d 415, 421 (7th Cir. 1996).
Such instances in civil cases are rare.
Walker argues on appeal that the district court judge erred
in admitting evidence that was both prejudicial and protected
by patient-psychiatrist privilege. At trial, Walker himself introduced two privileged communications—Exhibits 7 and 8
(progress notes written by Walker’s therapists). The defendants also introduced into evidence two progress notes—Exhibits 14 and 22. At trial, Walker did not object to Exhibit 14.
He objected to Exhibit 22 on grounds of relevance, prejudice,
and hearsay, but not privilege. Walker waived the objections
he raises on appeal, and we find no plain error.
1. Exhibit 14
We begin with Exhibit 14, which was a progress note dated
February 3, 2009, authored by defendant Schostak and introduced by the defense to demonstrate that Walker’s request for
copies of his progress notes was granted and that he was making progress toward his treatment goals. As Walker’s primary
therapist, Schostak testified at trial regarding the exhibit.
When defense counsel first asked Schostak to review the document during re-direct examination, there was no objection
from Walker. Then, on re-cross examination, Walker himself
questioned Schostak using Exhibit 14 to try to establish a
timeline that would support his retaliation claim. At the close
of Schostak’s testimony, defense counsel moved to admit both
Exhibits 14 and 22. Walker objected at that time only to Exhibit
22. Exhibit 14 was then admitted without objection. The court
then asked, “is there any objection to all those exhibits that
have been admitted going back to the jury … ?” Again, Walker
did not object to Exhibit 14.
On appeal Walker argues for the first time that Exhibit 14
should not have been admitted because it is privileged and
prejudicial. Walker never objected to the admission of Exhibit
14 at trial. In fact, he tried to use Exhibit 14 to support his own
theory of the case. Walker has waived the argument that Exhibit 14 was improperly admitted and failed to make a showing of the type of extraordinary circumstances required to establish plain error. See, e.g., Jimenez, 732 F.3d at 720; Stringel,
89 F.3d at 421.
2. Exhibit 22A
Walker also argues on appeal that the court erred by admitting Exhibit 22A, which was the redacted version of a progress note dated February 26, 2009, and authored by Dr. Koch.
It summarized Walker’s progress for the period between January 13 and January 16. Walker did object to Exhibit 22 at trial.
Exhibit 22 was first introduced by the defense during Schostak’s testimony. The problem is that Walker’s only objection to
Exhibit 22 was to the relevance of a question referring to the
exhibit: “And can you tell us what the issues were that you
were dealing with; without going into any specifics about any
underlying offenses? What were the specific issues that Mr.
Walker was addressing with you?” The court overruled the
relevance objection, and Walker did not pursue it further.
After the witness was excused and the jury left the courtroom for a recess, the defense moved to place Exhibit 14 and
22 into evidence. At that point, Walker objected to Exhibit 22
based on “relevance, prejudice, and hearsay.” He argued that
the exhibit was hearsay because the witness did not author
the document and testified falsely; that “it would not be relevant because the connection that the witness was making with
the document is not the actual reason for the document having been created”; and that “it’s prejudice because of the content of the information.”
The court found there was “highly prejudicial information
in the Document 22. There is also relevant information and
certainly this was the treating therapist who relied upon those
notes. And these are therapist progress notes. So I’m willing
to admit a redacted copy of Defendant’s Exhibit 22 if the language can be successfully stricken by interlineation.” Then,
“I’ll show 22 is refused and 22A as redacted will be admitted
without objection.” Walker did not correct the judge’s statement that Exhibit 22A would be admitted without objection.
Finally, the judge asked if there were objections to the admitted exhibits “going back to the jury” during deliberations.
Again, Walker ensured his objection was heard by the court.
He asserted, “I have what appears to be a marker that has redacted the prejudiced information, but you still can see
through it. So I don’t know exactly what way it’s going to go
back to the jury. … The document lacked foundation, Your
Honor, and relevance.” The court then addressed the issue of
text being visible through the marker by making photocopies
and did not address the objection to relevance and lack of
foundation, on which the court had already ruled.
The next morning, Walker again raised an objection to Exhibit 22A, the redacted version of Exhibit 22. “I object to the
total document. The total document, foundation has not even
been laid for the document. It has not even been admitted
properly. … It’s hearsay.” The court overruled the objection
without elaboration. Walker never objected to the redacted
Exhibit 22A on grounds of prejudice or privilege. He argued
only that Exhibit 22A as redacted should not be admitted on
grounds of relevance and hearsay.
Walker thus waived his argument that the trial court erred
by admitting redacted Exhibit 22A on grounds of undue prejudice under Rule 403. The arguments based on relevance and
hearsay that he did pursue at trial have been abandoned on
appeal. Further, as evidenced by the lengthy exploration of
the record here, Walker did not argue at trial that the progress
note is protected by patient-psychiatrist privilege. Walker
himself had offered arguably privileged and closely related
documents, and it would be difficult to allow him to pick and
choose which privileged documents the jury could be allowed
to consider. Walker objected on other grounds and waived his
appellate argument based on the patient-psychiatrist privilege. See Williams v. Jader Fuel Co., Inc., 944 F.2d 1388, 1405 (7th
Cir. 1991) (collecting cases showing that a “specific objection
made on the wrong grounds and overruled precludes a party
from raising a specific objection on other, tenable grounds on
appeal”) (quotation omitted); Hale v. Firestone Tire & Rubber
Co., 756 F.2d 1322, 1333–34 (8th Cir. 1985) (“An objection at
trial on one ground will not enable the objecting party to rely
on appeal on other grounds that were not stated in the trial
When a party waives an objection at trial, only seldom
may the waiver be overcome, and even then only at the discretion of the court with a strong showing of plain error. Plain
error should be extremely rare in the case of a strategic waiver.
See, e.g., Spaine v. Community Contacts, Inc., 756 F.3d 542, 545
(7th Cir. 2014) (“as a general rule of course, we should reverse
a district court’s decision on the basis of evidence or arguments not presented to the district court only in highly unusual and compelling circumstances”); Perry v. City of Chicago,
733 F.3d 248, 253–54 (7th Cir. 2013) (observing that in “most
civil cases, plain error review is unavailable” and declining to
find plain error in a civil case). Walker cannot show plain error. First, he introduced privileged patient-psychiatrist treatment records as plaintiff’s Exhibits 7 and 8 and did not object
to defendants’ Exhibit 14. Second, the trial court judge considered Walker’s arguments to exclude Exhibit 22, redacted the
prejudicial portions, and determined that what remained was
relevant and not hearsay. Thus, Walker waived his argument
that the exhibits were privileged and prejudicial, and we decline to exercise our discretion to review further because
Walker has not cleared the high bar of plain error by showing
extraordinary circumstances resulting in a miscarriage of justice.
In sum, Walker’s arguments on appeal have been waived,
and he cannot show plain error. The judgment of the district
court is AFFIRMED.
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